Posts Tagged ‘immigration reform’

Many employment and family-based categories have had severe visa availability backlogs for quite some time. In fact, in certain situations, permanent residency applications can easily take well over a decade. The Senate Bill (s.744) addresses this issue by exempting derivative family-members, and some physicians and PhD holders, from the annual-limits for employment-based immigration. The legislation would also allocate additional visa numbers to those foreign students who graduate with advanced degrees in Science, Technology, Engineering and Mathematics. These provisions will help clear the backlog and make employment-based permanent residency a faster process for intending immigrants.

The legislation will also have a significant impact on family-based immigration. Right now, there are visa availability backlogs for Lawful Permanent Residents who want to sponsor their spouse for residency in the US. Residency processing came sometimes take many years. On the other hand, spouses of US citizens are classified as ‘immediate relatives’ and are not subject to these visa backlogs. This bill would redefine ‘immediate relatives’ to include children and spouses of permanent residents, thus removing them from these numerical limitations and residency processing will be much faster, as it should be.

2. On the H-1B Visa

Some of the provisions in the Senate legislation related to the H-1B professional worker category are good and others are bad. On the positive side, the bill increases the regular H-1B cap from 65,000 to 110,000. In addition, it would allow the Department of Homeland Security to increase the H-1B cap up to 180,000 depending on demand. The legislation would also increase the Master’s cap from 20,000 to 25,000.

Another very favorable provision is allowing H-1B workers 60 days to transition between jobs. Our currently law does not allow any transition time, which is unrealistic in our job market. The bill will also allow certain spouses of H-1B visa holders to obtain work authorization, which again is an improvement over current laws.

Unfortunately, the bill also places some unnecessary burdens on employers who use the H-1B program. For example, all employers would be required to test the US labor market before filing an H-1B application. Under current law, only certain H-1B dependent employers (those whose workforce consists of a large number of H-1B workers) must test the labor market first. In addition, the bill places severe penalties on H-1B dependent employers. For example, employers with 50 or more employees would have to pay an additional fine of $5000 per sponsored worker if more than 30 percent of their workforce consists of H-1B workers. This fine increases to $10,000 if their workforce consists of more than 50 percent of H-1B workers. The bill also places an upper limit on how many H-1B workers a company can ultimately hire. We believe that some of these provisions should be changed to make the H-1B program more ‘market-based’ instead of heavily regulated as is proposed by the current legislation.

We recently did a Webinar on the Senate Immigration Bill. To view our powerpoint presentation, click HERE.

Immigration remains an issue in the forefront of U.S. political and social dialogue. Many Americans assume that the primary problem is with undocumented migrants, but the fact is that our immigration laws as they relate to legal employment and family immigration need a complete overhaul.

That is still not within sight, unfortunately.

Part of this is because the issue has become so emotional, with legal and illegalimmigration issues desperately entangled, that it puts politicians on thin ice with their constituents regardless of their position on the subject. However, there have been some interesting ‘piece-meal’ bills and policy memos that have had some impact this year.

One of its sponsors (Chaffetz) stated “I am committed to fixing legal immigration. By removing per country limits, American companies will be able to access the best talent. This legislation is pro-growth, pro-jobs, and pro-family. I encourage my colleagues in the House to pass this bipartisan legislation.”

The current system, where no country may be allotted more than 7 percent of employment or family visas, has long been criticized as unfair to larger, or more highly-represented countries such as India, China, Mexico and the Philippines. The proposed bill would eliminate the limit for employment-based visas and raise it to 15 percent for family visas.

With some high-skilled workers from India and China waiting nearly a decade for a Green Card, this is a great start. Not only will it have a significant and positive impact on thousands of individuals’ lives, but many experts think it would create a boost to our economy. More visas means more workers, with more families paying US taxes and spending money at US businesses.

Unfortunately, when sent to the Senate, Senator Charles Grassley (R) put the bill on ‘hold’. He said the bill “does nothing to better protect Americans.”

When one in four U.S. companies have a foreign co-founder, does this position really make sense if job creation is a goal?

Neufeld Memo

Although it took effect in 2010, this year theNeufield Memocontinued to change the way H-1B applications are prepared for employee-contractors.

Employers who outsource their workers must continue to provide substantial evidence of the contractual agreements between their company and their vendor, and between the vendor and the end client. In most cases, the end client must refer to the worker by name, and state the length of the contract as being the same as the I-129 requested validity dates.

Needless to say (although we’ll say it anyway) it is very difficult for an employer to get that kind of contract until the position is filled, and it’s difficult to get the position filled without presenting the contract to the USCIS. This vicious cycle keeps – or delays – U.S. employers from filling jobs and optimizing their business practices.

This ‘disconnect’ between government policies and common business practices does nothing to help our economy and seems, in fact, to be quite a hindrance to its recovery.

Alabama’s HB 56

This year Alabama passed a law making it a Class C Felony for undocumented aliens to transact business with state agencies. As a result, at least one utility company in Alabama posted a sign informing its customers that this prohibited them from providing water service to undocumented immigrants. Since Class C felonies are punishable by up to ten years in prison, this meant an undocumented alien could be imprisoned for a decade for attempting to use water in Alabama.

Also, based on how broadly the State defines “business transactions,” it could be that any transaction, including paying State taxes, could result in imprisonment.

Alabama is one of several states that have passed their own stringent immigration laws. The Department of Justice is currently challenging state immigration laws in Utah, Alabama, Arizona and South Carolina. In addition, they are reviewing immigration laws recently passed in Indiana and Georgia.

As more and more states continue to legislate on federal immigration laws, the conflict between our federal and state governments will be interesting to watch in 2012.

DREAM Act

Late last December, the DREAM Act (the Development, Relief and Education for Alien Minors Act) bill did NOT receive enough support to pass, but it continues as a source of debate on the overall immigration issue in the U.S. To be eligible for the act, undocumented students must have entered the country when they were 15 or younger and graduated high school or obtained a GED. To receive a green card, the bill required them to complete two years in the military or two years of college — plus a 10-year waiting period. Only six years later would they be eligible to apply for citizenship.

In response to this failing at the federal level, some states are again taking immigration law into their own hands. Recently, Gov. Jerry Brown signed The California Dream Act, which will become effective January 2013, into law. The law will make available state-funded financial aid to undocumented immigrant students in California. Funds include state Board of Governors fee waivers, student aid programs administered by a college or university, state aid Cal Grants program for state universities, community colleges, and qualifying independent and career colleges or technical schools in California.

The other half of the California Dream Act was signed into law by Brown in July and allows undocumented immigrant students to receive privately funded scholarships administered at public universities and community colleges.

The California Dream Act differs somewhat from the proposed federal bill, which would have created a path to citizenship for immigrants who entered the United States illegally as children under the age of 16, had lived in the United States for at least five years, obtained a high school or General Education Development diploma, and demonstrated “good moral character,” according to a White House fact sheet.

The DREAM Act has had, at times, support from both political parties. Unfortunately, most politicians today do not want to vote for any immigration bill for political reasons. If you’ve read the comments after any article written on the issue, you would understand why.

Immigration is currently a highly toxic and combustible issue.

As it relates to the DREAM Act, however, people should ask themselves some very fundamental questions: Is it right to deport someone who 1) was brought to the U.S. at a very young age through no choice of their own; 2) has lived in the U.S. their entire life, and knows no other country as home; and 3) is trying desperately to become a productive member of our society?

What Lies Ahead?

Immigration will continue to be a large part of the American consciousness in 2012. Whether through pressure from the “Border States”, economists, U.S. businesses, or farmers, Congress will be forced to make decisions about legal AND illegal immigration.

We should not forget that our legal immigration system, which is a vital part of the fabric of American history and culture, can be addressed separately from illegal immigration. The latter needs serious, reasonable discourse regarding the role we Americans want to play in this modern world – and how we want to approach the 11 million undocumented migrants in the US, and the continued flow across our borders.

But legal immigration needs smart reform NOW, whether comprehensive or ‘piece-meal’. It would spur innovation, bolster the economy, create jobs, and provide people with a better life.

A few weeks ago, we posted anarticle on our Facebook page that said Senators Chuck Schumer and Lindsay Graham are testing ‘political will’ on a possible push for comprehensive immigration reform. Of course, we were immediately skeptical. If immigration reform didn’t happen when Democrats had a supermajority in Congress, can it really happen during an election cycle over the next two years?

Summing up the argument on both sides of the debate, Ray Suarez writes the following in anarticle in the Huffington Post:

The symbolic argument is strong and holds tremendous appeal for millions of Americans. It goes something like, “What part of ‘illegal’ don’t you understand?” People who did not follow the law, gain proper documents, and enter the American job market with the permission of the immigration authorities, goes the argument, should get no consideration at all from the system. Those people are right. The eleven million or so illegal residents in the country have no legal claim to long term legal residence in the United States.

But hold on a minute… the other side quickly pipes in, “What part of collapsing industries don’t you understand?” Immigrant labor is the pillar upon which many industries leans. Immigrant labor creates profits that spin out into real estate markets, department stores, auto dealerships, and keep the country’s food the cheapest in the developed world. In the near term, it’s interesting to speculate on whether sending the 11 million home would reduce the unemployment rate among native-born citizens, or explode it. The effects would no longer be confined to the Northeast, Border Southwest and the West Coast. Wait until you see the Census figures from all kinds of places that never thought of themselves as Latino kind of places.

It would be in the best interests of both political parties, and our country, to put differences aside and pass a fair immigration reform bill that balances enforcement with our country’s immigration needs. But in an election cycle, political will is likely to be absent on this issue, and as Mr. Suarez correctly points out – it’s complicated.

The difference between 1986 and 2010 Comprehensive Immigration Reform

None of the CIR bills introduced in Congress resemble Reagan’s 1986 amnesty. What Reagan did was a true amnesty – he granted something very close to Lawful Permanent Resident (“green card”) status to illegal aliens who met certain requirements. These CIR bills do not grant automatic ‘green card’ status to anyone. Instead, they create a separate immigration status for illegal aliens who qualify. After that, these aliens will have to go through the long and cumbersome “green card” process just like any other immigrant who wants to live in the United States.

The author of the immigration article referred to earlier, indirectly blames the 1986 amnesty for the increased numbers of illegal aliens in the United States. She also says that CIR will not stop illegal immigration.

The amnesty in 1986 did not singularly play a role in increasing illegal immigration. There are many factors that contribute to illegal immigration, including enforcement, country conditions and the big one – ECONOMY.

As our country currently experiences what some say is the worst recession since the Great Depression, fewer illegal immigrants are coming to the U.S. and, in fact, more are going home.

CIR should not be confused with stopping illegal immigration. Stopping illegal immigration is related to enforcement. We can build the Great Wall of China across our southern border and basically shut down illegal immigration from Mexico, but that does not impact the illegal immigrants who are already in the U.S.

Call us crazy, but we will continue to do what we can to help immigrants achieve the American dream day in and day out, because they have families, jobs and they contribute to our economy. Many are young children who have grown up here and call America home.

Comprehensive Immigration Reform directly affects all of them. It affects all of us. We don’t think that is insane.

A few weeks ago, I had the opportunity to meet with a group of inspirational immigrant students who made a stop in North Carolina on their 1,500 mile trip from Miami, FL to Washington, D.C. by foot as part of the “Trail of Dreams” initiative to demand just and smart immigration reform. The event was sponsored by UnitingNC (www.unitingnc.org), an organization with a mission to foster rational dialogue between immigrants and others in the community.

North Carolina, like other southern states, has seen a significant increase in deportations, workplace raids, and barriers to higher education for immigrant students. Furthermore, Section 287(g) of the Immigration and Nationality Act, which authorizes the Federal Government to enter into agreements with state and local law enforcement agencies to perform immigration law enforcement functions, has created fear amongst aliens who lack a valid immigration status. This often causes illegal aliens to fail to report crimes to local law enforcement for fear of deportation.

These students spoke openly and candidly to me, public safety representatives and others interested community members about the challenges that these students and the 12 million undocumented aliens in the United States face each day and the hope that they have for the future. These students, some of whom are undocumented, are no different than any of us. They are good, hard-working, and kind people. The only difference is a status based on law. In the history of our great country, there have been bad laws related to women’s voting rights and segregation, to name a few, and those laws have been changed. Gaby, one of the students, pointed out that we need to do the same thing with our immigration laws.

During their visit they showed an inspirational video that I feel is certainly worth sharing:

On Sunday, thousands of diverse groups from across the nation marched on the National Mall in Washington D.C., peacefully, calling for immigration reform.

During the past few weeks, various ethnic and advocacy groups across the U.S. have promoted fundraising efforts to help people get to Washington, D.C., for the immigration reform rally.

A similar call for action happened right here in North Carolina, where the state’s Spanish-language media network, Que Pasa, called for the public’s support through their radio airwaves to sponsor additional buses, food and water for community members wishing to take the ride up to D.C. for Sunday’s march.

According to the U.S. Census Bureau, the area known as the “research triangle” is the fastest growing metropolitan area in the country, with a growth rate of 4.3 in 2008. And, part of the growth is due to immigrants choosing this area to settle down: almost 35 percent of immigrants in North Carolina came to the United States after the year 2000.

Ethnic media outlets, like Que Pasa, have been keeping a watchful eye on the changes in North Carolina’s immigration issues, which have become an important topic for the Hispanic community in light of the state’s clamp down on undocumented immigrants.

We recently built a partnership with the Spanish-language news network to provide immigration education and information to the state’s Hispanic community, so when I received a call from Que Pasa’s account executive, Josie Aronson, requesting Bashyam Spiro’s pledge of support for Sunday’s march, I knew that we would want to contribute our own “granito de sal” (grain of salt). Our managing partner, Murali Bashaym immediately agreed to pledge to the cause.

The media company had personally sponsored 6 buses. But with the support of local businesses, like us, and individuals in the community, they were able to add 6 additional buses to their caravan to the nation’s Capitol in just 24 hours!

Our firm was unable to attend the historical event at Washington’s National Mall, but as an immigration law firm we know that the topic of immigration is widely misunderstood in America, which causes unnecessary conflict where none should exist.

I worked as immigration caseworker for a U.S. Congressman several years ago and have since had an interest the immigration system and learned just how much it is in need of a “face lift.” While I did not go through the immigration system, I grew up in Puerto Rico and my grandparents came to the U.S. from Puerto Rico, Italy and the U.K.

Our managing partner, Murali Bashyam, has been an immigration lawyer for over 14 years, and represents many immigrants in North Carolina and across the United States. He too is an immigrant. His parents are from India and he was born in Canada. He is passionate about the topic of immigration for many reasons, one of which has to do with the wonderful people we meet through our work.

That’s why we are committed to supporting events like yesterday’s march, as well as, initiating conversations through the media and within the community that will hopefully result in mutual understanding among immigrants, U.S. citizens and U.S. permanent residents.